On December 30, 2022, Decree No. 11,322/2022 was published, reducing the PIS rate to 0.33% and the Cofins rate to 2% on financial revenues earned by legal entities subject to the non-cumulative regime.
It was also provided for the possibility of PIS and Cofins credits for financial institutions operating with micro and small businesses. This credit would be equal to the difference between the tax calculated at the rates of 0.38% and 0.65% for PIS and 1.5% and 3% for Cofins, respectively.
However, with a change of government, the aforementioned decree was replaced by Decree No. 11,374/2023, effective as of January 2, 2023, which restored the original PIS and Cofins rates of 0.65% and 4%, respectively, with the aim of avoiding a loss of federal government revenue in light of possible reforms and increased spending on social programs.
In this regard, it has been argued that this change must comply with the nonagesimal antecedence principle, provided for in Articles 150, III, “c,” and 195, § 6, of the Federal Constitution, which establishes that no tax law can produce immediate retroactive effects unless it is to benefit the taxpayer.
The Supreme Federal Court has already addressed this issue in the judgment of Direct Action of Unconstitutionality No. 5,277/DF, in which it established the following thesis: The increase in the contribution to PIS/Pasep or Cofins by means of authorized decrees is subject to the nonagesimal antecedence provided for in Article 195, § 6, of the Federal Constitution, corresponding to Article 150, III, “c.”
Therefore, it is possible to argue that the new rates reinstated by Decree No. 11,374/2023 shall only take effect as of April 1, 2023, especially because there are already favorable precedents in the Supreme Court on the subject, as well as interim decisions in other courts ensuring the taxpayer’s right to maintain the 50% reduction in PIS and Cofins rates on financial revenues.
Our team is available to provide the necessary guidance on this matter and to develop the most appropriate strategies for our clients.